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SUPREME COURT OF INDIA
J.S. Verma and Sujata V. Manohar, JJ.
Union of India - Appellant
versus
Thamisharasi & Ors. - Respondents
Criminal Appeal Nos. 611-612 of 1995
(Arising out of S.L.P. (Crl.) Nos. 253-254 of 1995) With Crl. Appeal Nos. 298-299 of 1995
Both Decided on 1.5.1995
Held: The limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr. P.C. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(1) (b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible. (Para 9)
Further Held: Provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provision in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation.
In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 Cr. P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. (Paras 12 & 13)
(ii) Criminal Procedure Code, 1973 - Section 437 - NDPS Act, 1985 - Section 37 - Bail Distinction between provisions of Section 437 Cr. P.C. and Section 37 N.D.P.S. Act. (Paras 10 & 11)
Result: Appeals dismissed.
JUDGMENT
J.S. Verma, J. - Leave granted in special leave petitions.
2. The common question of law for decision is: Whether the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act''), to claim release on bail in the expiry of the total period specified therein if the complaint is not filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of the respondents who were arrested for the commission of offences under the N.D.P.S. Act in default of filing the complaint within that period. Hence, these appeals by special leave.
3. The material facts are only a few Admittedly, the Narcotics Control Bureau got a tip-off that a consignment of flasks exported from Madras to Israel contained Hashish concealed therein; and pursuant to this tip-off the consignment was seized at Israel on 8.6.1994. On the basis of information, the premises of the accused Armukham, Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the concerned authorities. These accused were arrested on 27.6.1994 and produced before the Magistrate who granted remand from time to time. We need not mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 since that is the subject matter of a different proceeding wherein the order of preventive detention was challenged. Admittedly, the complaint against the accused was not filed within the maximum period of 90 days of the arrest specified in the proviso to sub-section (2) of Section 167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on, expiry of the specified period of 90 days and they have been directed to be released on bail on that ground alone. The High Court has rejected the prayer for cancellation of the bail by the impugned order. Hence, these appeals which involve for decision the aforesaid common question of law.
4. It may be mentioned that in the meantime, after the aforesaid prescribed period, the complaint has been filed but this subsequent fact is not material for decision of the above question of law. It is common ground that the legality of the impugned order granting bail is to be decided with reference to its date prior to the filing of the complaint. The power to detain the accused on the basis of the material now available on merits or the liability of the accused for preventive detention is a separate question which does not arise for consideration herein, and would remain unaffected by the view taken in these appeals on the sole question for decision.
5. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the N.D.P.S. Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub-section (2) of Section 167 Cr. P.C. is excluded in the case of a person accused of any offence punishable under the N.D.P.S. Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the N.D.P.S. Act supports the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. instead of indicating its exclusion in such cases.
6. The relevant provisions in the Code of Criminal Procedure, 1973 are as under:
"4. Trial of offences 'under the Indian Penal Code and other laws. - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with accordin
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